Labor & Employment Law Blog

While Ms. Howell was out on medical leave for another employer, she applied for and was hired by the Department of State Hospitals (“DSH”) as a pre-licensed psychiatric technician.  On January 2, 2020, the day after she commenced working for the DSH, she submitted a doctor’s note to her former employer stating that she could not return to work until February 23.  DSH asked Ms. Howell during the hiring process if she had disorders of the nervous system, and she answered no despite her suffering from a condition due to a sexual assault by a patient in 2017.  When this omission as well as her not quitting her previous job was discovered three weeks after she was hired, she was fired for her deception and not due to circumstances beyond her control like George Bailey.

Ms. Howell was unemployed for approximately 16 months.  She retained her attorney one week after she was terminated, and soon thereafter filed a lawsuit against DSH that went to trial in May 2023.  The court dismissed the failure to accommodate and failure to engage in the interactive process claims on summary judgment, Ms. Howell dismissed the failure to prevent discrimination claim on the first day of trial, and the jury returned a verdict on only the mental disability claim and not the physical disability claim for Ms. Howell awarding her $28,941 in lost earnings, $7,810.25 in lost health insurance, and nothing for pain and suffering.

Jury’s finding of no pain and suffering upheld

In closing argument, Ms. Howell’s attorney asked for between $50,000 and $150,000 for mental suffering and emotional distress and between $150,000 and $450,000 for loss of enjoyment of life, grief, humiliation, depression, and anxiety.  Almost all discrimination cases result in emotional distress, but faith is believing in things when common sense tells you not to.  When the jury awarded Ms. Howell no emotional distress damages, her attorney attacked the Grinch-like jury by moving for a new trial on non-economic damages only or, in the alternative, a conditional award of $70,000.  The trial court denied the motion and this decision was upheld by the court of appeal.  Perhaps her own treating psychologist testifying that one month after the termination she was presenting the best he had ever seen her was heard by the jury and was the deciding factor.  Thus, if a plaintiff has long-standing psychological symptoms, any emotional distress alleged from a termination must be looked at in context so defense counsel can better weave a story of pre-existing damage.

Potential lost benefits are not recoverable

Ms. Howell’s health insurance benefits were discontinued upon her termination, and she did not obtain any substitute coverage.  While she did not have health insurance, she also did not incur any medical expenses during the non-covered period.  As a result, she had no actual damages, and the court granted a judgment notwithstanding the verdict and struck the value of the health insurance premiums from the verdict.  A loss of health benefits is only recoverable if an ex-employee suffers an actual out-of-pocket expense.  The key is not that you’ll shoot your eye out kid; rather, you must actually shoot your eye out.

Limited plaintiff attorney’s fees - - it must be a holiday miracle

In Chavez v. City of Los Angeles, 47 Cal. 4th 970 (2010), the California Supreme Court held that a reduced fee award is appropriate where the plaintiff only achieves a limited success, and a fee request that appears unreasonably inflated is a special circumstance that permits a trial court to reduce the award or deny one altogether.  At the Mandatory Settlement Conference in January 2023, Ms. Howell estimated her damages to include $29,818 for lost wages, between $250,000 and $350,000 for noneconomic damages, and attorneys’ fees and costs of $123,101.95.  Seven months later her attorneys calculated that their billing rate multiplied by hours worked was equivalent to $997,400 and sought a multiplier of 1.75 resulting in a total attorney request of $1,745,450, plus litigation costs of $33,735.29.  Although the court found the time spent on various matters “shocking” and “beyond all reason,” it awarded her attorneys $135,102 in fees and costs.

The court found it persuasive that Ms. Howell only prevailed on one of five causes of action, and she turned down a settlement offer of $30,000 four months before trial.  The court recognized that an attorneys’ fees award was to compensate counsel and not provide a windfall.  The court found the case was not particularly complex, and it was over litigated.  For instance, Ms. Howell filed nineteen motions in limine, none of which were successful, and her attorneys spent 62 hours opposing Ms. Howell’s mental exam when her emotional state was at issue.  As the court noted, counsel is not entitled to compensation for work merely because it was performed.  An attorney must show that work was reasonably necessary both as to the task performed and the amount of time devoted to the task.  This is the third case following this trend of not rewarding attorneys who overwork a case.  See Snoeck. v. Exaktime Innovations, Inc., 96 Cal. App. 5^th 908, 925 (2023)(the court held that a reduced attorneys’ fee award might be justified by a general observation that an attorney over litigated a case); Vines v. O’Reilly Auto Enterprises, LLC, 74 Cal. App. 5^th 174, 182 (2022)(a fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether).  It appears that courts are moving towards not letting plaintiff attorneys play reindeer games and overwork up a case.

Employer Takeaways

• Short length of employment does not insulate an employer from employment liability.
• Although employment termination is a disturbing occurrence, it is not a guarantee of emotional distress recovery especially for short-term employment.
• An employee’s lying on a hiring document does not guarantee an employer victory.
• It is critical to wade through medical reports to find potential diamonds in the rough.
• Speculative damages, like what you might have potentially spent on medical treatments, are not recoverable if you actually did not spend money on such treatments.
• Mandatory settlement conferences should be considered in lieu of or in addition to mediations because mandatory settlement conference statements are not confidential and might serve as evidence of actual attorneys’ fees as opposed to mediation briefs which are confidential.  See California Evidence Code § 1117(b)(2).
• Summary judgment motions and trial motions for nonsuit and directed verdicts matter, because the more defense counsel can narrow a case, the better they can argue that Plaintiff’s attorneys were not as successful as possible and should have a diminished award of attorneys’ fees.
• Plaintiff attorneys who overreach in their request for attorneys’ fees run the risk of diminished and even no attorneys’ fees award at all.  

  This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

  © 2024 Atkinson, Andelson, Loya, Ruud & Romo